The ruling in 2nd DCA - Michael Mordenti

The ruling in 2nd DCA - Michael Mordenti

http://www.floridasupport.us/Florida/MichaelMordenti/2ndDCAopinion.htm

http://www.floridasupport.us/Florida/MichaelMordenti/2D05-4407.pdf

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

MICHAEL MORDENTI, )

)

Appellant, )

)

v. ) Case No. 2D05-4407

)

STATE OF FLORIDA, )

)

Appellee. )

_____________________________________ )

Opinion filed February 22, 2008.

Appeal from the Circuit Court for Hillsborough

County; Barbara Fleischer, Judge.

James Marion Moorman, Public Defender,

and Terri L. Backhus, Special Assistant Public

Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee,

and Richard M. Fishkin, Assistant Attorney

General, Tampa, for Appellee.

HARRIS, CHARLES M., Associate Senior

Judge.

The issue in this case is whether the trial court erred in excluding

statements made by the alleged coconspirator, deceased at the time of trial, which, if

believed by the jury, would exonerate Michael Mordenti. We hold that the trial court did

err and reverse.

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Mordenti was first convicted of first-degree murder in 1991, at which time

he received the death penalty. Mordenti's conviction and sentence was affirmed by the

Florida Supreme Court in 1994. However, on review of a denied motion for

postconviction relief, that court reversed the conviction and sentence because of a

Brady1 violation. Mordenti v. State, 894 So. 2d 161 (Fla. 2004). A second trial resulted

in a mistrial (hung jury). Mordenti was tried once again, resulting in a second conviction

and this appeal.

Larry Royston, the victim's husband, was immediately the prime suspect in

the case. Because he had an alibi (he was with the victim's mother at the time of the

murder), law enforcement believed a hired killer was involved. Through Royston's

telephone records, the police were led to Gail Mordenti Milligan. When she was called

in for questioning, Mrs. Milligan demanded immunity for her cooperation, and apparently

without any additional investigation, she received it. She then told the investigators that

indeed she was the go-between in setting up this murder-for-hire. Royston offered

$10,000 for the murder of his wife, and Mrs. Milligan set out to find a contract killer.

Mrs. Milligan told authorities that her former husband, Michael Mordenti, after initially

refusing, had agreed to do the murder. This was her testimony at trial, and it was the

only material evidence against Mordenti.

The Florida Supreme Court in reversing Mordenti's original conviction

noted how critical Mrs. Milligan's testimony was in obtaining the conviction:2

1 Brady v. Maryland, 373 U.S. 83 (1963).

2 Had Mrs. Milligan testified that her boyfriend had committed the murder, there

would have been some corroboration because independent witnesses stated that two

people were seen in the vicinity of the murder at or near the appropriate time and that

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Mordenti was convicted primarily on the testimony of

one woman, Gail Mordenti Milligan. No physical evidence

was produced linking Mordenti to the murder, and Gail was

the only witness who was able to place Mordenti at the

scene of the murder. There was no money trail, no

eyewitnesses, no confession, no murder weapon, no blood,

no footprints, and no DNA evidence linking Mordenti to the

murder. The prosecution's entire case relied solely on Gail's

testimony, and the jury crediting that testimony.

894 So. 2d at 168.

The testimony in the case indicates that Royston never met Mordenti.

This is important because when Royston first saw Mordenti in court, he blurted out to

his attorney in a crowded courtroom, "That's not the guy" or "That's not him."3 This

statement, as well as others, was not discovered until after Royston committed suicide

shortly before his trial.4 The prosecutors of Mordenti convinced a judge that Royston's

attorney-client privilege ended with his death and obtained an ex parte order requiring

Royston's attorney, Trevena, to respond to the State's questions. Although the above

quoted courtroom statement was not specifically mentioned, the Florida Supreme Court

discussed the importance of Trevena's testimony in its decision overturning Mordenti's

conviction:

After Royston committed suicide, the State obtained an ex parte order

signed by the trial judge stating that the attorney-client privilege did not

apply and ordering Trevena to submit to an interview with the State. . . .

while neither met the description of Mordenti, one did meet the description of Mrs.

Milligan's boyfriend.

3 Royston's attorney testified on proffer that Royston had been "adamant that

[Mordenti] had absolutely nothing to do with [the murder]."

4 Suppose Mordenti had been executed following his first conviction and

sentence before this information was revealed by the State? What confidence would

the public have in the criminal justice system?

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During the evidentiary hearing [on the motion for

postconviction relief] the trial court ruled that Trevena's

testimony with regard to the information he received from his

deceased client in preparation for his murder trial was

inadmissible hearsay. However, the trial court permitted

postconviction counsel to proffer Trevena's testimony. The

proffer indicated that Trevena conveyed to the prosecution

that Larry Royston believed that "Gail Mordenti had

orchestrated [the murder]." Trevena informed the State that

"Mr. Royston had indicated to [him] that [Royston] did have a

sexual affair with Gail Mordenti, and that she wanted to

continue that affair." Trevena further informed the State that

Gail "wanted Mr. Royston freed up so that she could share . . .

in his assets." Finally, Trevena communicated to the State

that Royston maintained that the thirteen-minute cellular

phone call on June 7, 1989, the day of the murder, from

Royston to Mordenti was "innocent in nature and that it was

relating to some type of a boat or motor vehicle," and "[t]here

was no discussion concerning any homicide or violence, . . . it

was related to business and . . . the call had been set up by

Gail."

Id. at 173 (some alteration in original).

Even though the credibility of Mrs. Milligan was the central issue of this

case, the trial court refused to allow Trevena's testimony on the basis of hearsay and

privilege. There was simply no privilege remaining at the time of the third trial. If the

privilege ever existed (the statement was blurted out in a crowded courtroom for anyone

to hear), it was waived when the State inappropriately required Trevena to respond to

its questions. The statement then became public information. The Florida Supreme

Court made this abundantly clear in its decision. The court did not treat the information

as privileged and discussed its potential admissibility. That has become the law of the

case as it relates to privilege.

With regard to the application of the hearsay rule, the United States

Supreme Court has stated that "where constitutional rights directly affecting the

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ascertainment of guilt are implicated, the hearsay rule may not be applied

mechanistically to defeat the ends of justice." Chambers v. Mississippi, 410 U.S. 284,

302 (1973). The uncorroborated statement of a coconspirator raises such concerns.

The one who took the money, picked the murderer, and was given immunity must be

subject to the closest scrutiny during cross-examination. Mrs. Milligan was not. The

Florida Supreme Court discussed the potential problem of hearsay in its decision and

suggested it should be available for impeachment of Mrs. Milligan who, for example,

had denied a sexual relationship with Royston. Royston's statement also meets the

spontaneous statement exception as well as the statement against interest exception to

the hearsay rule.

It may well be that the jury will not believe Mr. Trevena or may put some

other construction on Mr. Royston's statements. But the jury should have that

opportunity.

Reversed and remanded for a new trial.

DAVIS, J., Concurs with opinion.

STRINGER, J., Dissents with opinion.

DAVIS, J., Concurs specially with opinion.

I concur with Judge Harris' conclusion that the trial court committed

reversible error in determining that the testimony of the attorney who represented Larry

Royston prior to his death was inadmissible in the third Mordenti trial. However, I write

to explain why I believe that the attorney-client privilege does not apply in this case.

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The issue presented in this case is whether the privilege should now

preclude the use of Royston's attorney's testimony given the unique procedural posture

presented here. That is, the issue of whether the trial court was correct when it

originally determined that the privilege did not apply is not germane to our current

review.5

The purpose of the privilege is to bar the disclosure of information; it is not

a test of admissibility. See § 90.502(2), Fla. Stat. (2006) ("A client has a privilege to

refuse to disclose, and to prevent any other person from disclosing, the contents of

confidential communications . . . ."); see also E. Colonial Refuse Serv., Inc. v. Velocci,

416 So. 2d 1276, 1277-78 (Fla. 5th DCA 1982) (stating that although testimony may be

relevant and admissible, the information sought "may be privileged and therefore

beyond permissible discovery"). Once it is determined that a privilege does not prohibit

the disclosure of information, the question of whether it is admissible is determined by

the rules of evidence.

In the instant case, after Royston's death but prior to Mordenti's first trial,

the State obtained a ruling from the trial court that Royston's attorney could not assert

the privilege to keep from disclosing the conversations he had with this client.6

Royston's attorney never appealed this ruling, but rather complied by answering the

5 I recognize that section 90.508, Florida Statutes (2006), renders inadmissible

those disclosures that are erroneously compelled by the court; however, this section

does not apply to these facts because the statements here are not sought to be

admitted against the holder of the privilege, Larry Royston.

6 Because the State was the party that sought the ruling originally, an argument

can be made that the State should now be collaterally estopped from arguing that the

privilege should bar the use of the testimony at the retrial. However, the State does not

have standing to assert the privilege. See § 90.502(3).

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State's questions regarding the information shared with him by his client prior to the

client's death.

After discovering that the State had obtained this information but had

failed to disclose it to his counsel prior to trial, Mordenti sought postconviction relief

alleging a Brady7 violation. In reversing the postconviction court's denial of relief, the

Florida Supreme Court reviewed the information disclosed by the attorney pursuant to

the trial court's determination that the privilege did not apply and found that the State

had, in fact, committed a Brady violation by not providing the information to Mordenti's

counsel. Mordenti v. State, 894 So. 2d 161, 174 (Fla. 2004). The court granted

Mordenti a new trial, impliedly concluding that the defense should be provided the same

information that the State had obtained from Royston's attorney. Id. at 177.

Despite the fact that Royston's attorney never sought appellate review of

the trial court's determination of the inapplicability of the privilege, the Florida Supreme

Court, by ordering the further disclosure of the attorney-client conversation, implicitly

affirmed the trial court's determination that the privilege did not apply. Although the

privilege issue was not before the supreme court in this postconviction proceeding, the

practical effect of the court's order directing that the information again be disclosed to

Mordenti's counsel was that the conversations between Royston and his attorney were

no longer protected by the attorney-client privilege. Thus, as Mordenti argues on

appeal, this became the law of the case, and the trial court erred in determining that the

7 Brady v. Maryland, 373 U.S. 83 (1963).

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testimony was inadmissible at Mordenti's third trial because of the privilege.8 See Smith

v. City of Fort Myers, 944 So. 2d 1092, 1094 (Fla. 2d DCA 2006) (" 'The doctrine of the

law of the case requires that questions of law actually decided on appeal must govern

the case in the same court and the trial court, through all subsequent stages of the

proceedings.' " (quoting Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla.

2001))).

Having determined that the attorney-client privilege was not a proper basis

to exclude the attorney's testimony, I would further agree with Judge Harris' opinion in

concluding that the three portions of testimony at issue were admissible. The

spontaneous statement made by Royston to his attorney in open court that Mordenti

was "not the guy" would meet the statement against interest exception to the hearsay

rule. See § 90.804(2)(c). The other two statements would be admissible as

impeachment testimony. See § 90.608. I would therefore concur with Judge Harris that

the trial court erred in excluding the testimony and agree that the case should be

remanded for a new trial.

STRINGER, J., Dissents with opinion.

I respectfully dissent. I would affirm Mordenti's conviction because

Mordenti has not established any reversible error from the trial court's determination that

Trevena's testimony was protected by the attorney-client privilege. Let me begin by

stating that while the statements at issue would certainly assist in Mordenti's defense,

8 As mentioned in Judge Harris' opinion, it is not clear that the privilege was the

actual basis for the trial court's ruling. In fact, upon remand, the trial court entered

another order directing the attorney to answer the questions of Mordenti's counsel.

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those statements do not amount to a "smoking gun" that would exonerate Mordenti. In

order to understand the importance of the statements to Mordenti's defense, a better

explanation of the background facts is required. The facts adduced at Mordenti's third

trial have not changed substantially from those reported in Mordenti's first appeal by the

Florida Supreme Court:

This case involves the murder of Thelma Royston.

The victim's husband, Larry Royston (Royston), allegedly

hired Mordenti to commit the murder. Royston and Mordenti

were charged with the victim's murder after Royston's

cellular phone records led detectives to Mordenti's former

wife, Gail Mordenti,[9] who subsequently confessed that she

had acted as the contact person between Mordenti and

Royston. After Royston and Mordenti were charged,

Royston committed suicide. Consequently, his version of

the events at issue was not available. At trial, Mordenti's

defense was that he was some place else when the murder

occurred.

Testimony at trial revealed the following details

regarding the murder. The victim, Thelma Royston, lived

with her mother and her husband. On the night of the

murder, Royston told the victim that the lights were off in the

barn. Because the Roystons' horse business required the

barn lights to be left on until 10:00 or 11:00 each night, the

victim and her mother went outside to turn on the lights.

When they went outside, they noticed an unidentified man

off in the distance. The victim went to talk to him and called

back to her mother that the man was there to discuss a

horse Royston had for sale. The victim's mother went back

inside to tell Royston that the man was there, but when her

dog began barking she went back out to investigate. Upon

doing so, she discovered the victim's body in the barn. The

victim had suffered multiple gunshot and stab wounds.

Because it was night and the man had been so far off in the

distance, the victim's mother was unable to furnish a

description of him to the police.

9 Gail Mordenti married sometime after the events at issue and became Gail

Milligan.

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Because the victim suffered multiple gunshot and

stab wounds, the medical examiner was unable to

determine from which wounds the victim had died or

whether she had died instantaneously. However, there

were no defensive wounds and no indication that anything

had been taken or that the victim had been sexually

assaulted.

Additional testimony revealed that the victim and

Royston had been contemplating divorce, but that Royston

thought the victim was asking for too much money. A

former girlfriend of Royston's testified that Royston had

asked her to kill his wife by either shooting or stabbing her

to make it look like a burglary, but the former girlfriend had

refused. Mordenti's former wife, Gail Mordenti, testified that

Royston asked her if she knew of anyone who would "get rid

of his wife" for $10,000. Gail Mordenti stated that she

subsequently asked Mordenti if he knew of anyone who

would kill Royston's wife and he responded: "Oh, hell, for

that kind of money, I'll probably do it myself." Gail Mordenti

explained that she acted as the middle person between

Royston and Mordenti by conveying information about the

best time and place for the murder and by supplying a

photograph of the victim and a map of the ranch.

Gail Mordenti further testified that, when she first

approached Mordenti about murdering the victim, he

informed her that it would be impossible to commit the

murder as Royston wanted and that he would not do it.

However, Royston continued to insist to Gail Mordenti that

he wanted the murder committed. Gail Mordenti finally

placed Royston directly in touch with Mordenti. Royston's

cellular phone records reflected that he made a thirteenminute

telephone call to Mordenti's number on the day of

the murder. After the murder, Gail Mordenti delivered

payments totaling $17,000 from Royston to Mordenti.

According to her, the amount had risen from $10,000 to

$17,000 because Mordenti had to get rid of a car. Mordenti

gave Gail Mordenti between $5,000 and $6,000 of the

$17,000 over time to help her pay her bills. Additionally,

Gail Mordenti testified that Mordenti described the murder to

her, stating that the victim "put up quite a fight" and that he

"shot her in the head with a .22." He also told Gail Mordenti

that the victim had a lot of jewelry on and that he felt really

bad that he couldn't take it. She also testified that Mordenti

had a number of guns that he kept as "throw away" pieces

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and that she knew he was associated with some "shady"

people. (A cellmate of Mordenti's also testified that

Mordenti told him he was "in the mob.") For her testimony,

Gail Mordenti was offered complete immunity.

No physical evidence was produced linking Mordenti

to the crime, and Gail Mordenti was the only witness who

was able to place him at the scene of the murder. However,

her testimony was consistent with what police knew about

the murder and some of her testimony matched information

about the murder that had not been made public.

In his defense, Mordenti produced three witnesses

who stated that he had attended an automobile auction on

the night of the murder. Mordenti was a used car dealer

and frequently attended auctions where he purchased cars

for resale. The prosecution, however, was able to point to a

number of inconsistencies in the witnesses' testimony.

Additionally, one of the three witnesses was one of

Mordenti's girlfriends, and the other two witnesses had

testified only after being contacted by the girlfriend over a

year after the murder and after being reminded by the

girlfriend that the night of the murder was the same night

Mordenti had attended the auction.

Mordenti v. State, 630 So. 2d 1080, 1082-83 (Fla. 1994) (alteration in original). In the

appeal of the denial of Mordenti's motion for postconviction relief, the supreme court set

forth the statements Royston made to attorney Trevena during the initial proffer as

follows:

The proffer indicated that Trevena conveyed to the

prosecution that Larry Royston believed that "Gail Mordenti

had orchestrated [the murder]." Trevena informed the State

that "Mr. Royston had indicated to [him] that [Royston] did

have a sexual affair with Gail Mordenti, and that she wanted

to continue that affair." Trevena further informed the State

that Gail "wanted Mr. Royston freed up so that she could

share . . . in his assets." Finally, Trevena communicated to

the State that Royston maintained that the thirteen-minute

cellular phone call on June 7, 1989, the day of the murder,

from Royston to Mordenti was "innocent in nature and that it

was relating to some type of a boat or motor vehicle," and

"[t]here was no discussion concerning any homicide or

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violence, . . . it was related to business and . . . the call had

been set up by Gail." The defense was not privy to any of

this information.

Mordenti v. State, 894 So. 2d 161, 173 (Fla. 2004). In his proffer before the court at his

third trial, Trevena also explained that Royston did not admit any culpability in the

victim's death and insisted that Mordenti also had nothing to do with it. Trevena also

acknowledged that Royston blurted out to him in court, "That's not the guy," when

Royston saw Mordenti. While Trevena believed this statement may have been an

admission that Royston was involved in the offense, Trevena and Royston did not

discuss the matter further.

As I previously stated, Royston's statements would certainly assist in

Mordenti's defense, but I do not believe that the statements are the equivalent of a

"smoking gun" that will exonerate Mordenti. As the trial court below noted, "This is a

defendant who's talking to his defense attorney making what are clearly obviously selfserving

statements." Nothing Royston said to his attorney proves that Gail Milligan was

lying when she testified that Royston hired Mordenti to murder the victim.

Turning to the merits, the majority appears to hold that the State waived

the attorney-client privilege when it obtained an ex parte order ruling that the privilege

was not applicable to Royston's statements and ordering Trevena to participate in an

interview with the State in 1991. However, it was not the State who sought to assert the

privilege at Mordenti's third trial in 2005; it was attorney Trevena. Furthermore, the

State did not have the authority to waive or assert the attorney-client privilege. See §

90.502(3), Fla. Stat. (2005); Restatement (Third) of the Law Governing Lawyers § 86

(2000).

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Moreover, I respectfully disagree with the suggestion in both the majority

and the concurring opinion that the trial court's 1991 ex parte ruling that the testimony at

issue was not protected by the attorney-client privilege became law of the case when

the supreme court reversed the denial of Mordenti's motion for postconviction relief in

2004. The issue before the supreme court was whether the postconviction court erred

in denying relief on Mordenti's claim that the State committed a Brady violation by failing

to disclose the statements Trevena made at the interview that followed the ex parte

order at issue. See Mordenti, 894 So. 2d at 173. In order to analyze this issue, the

supreme court determined (1) that Trevena's statements in the interview were favorable,

(2) that the State suppressed the evidence, and (3) that the State's failure to disclose

the evidence prejudiced Mordenti. Id. at 173-74. The supreme court did not have

before it the issue of whether Royston's statements to Trevena were protected by

attorney-client privilege. The doctrine of law of the case applies only to those issues "

'actually decided on appeal.' " State v. McBride, 848 So. 2d 287, 289 (Fla. 2003)

(quoting Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (emphasis

added)).

I reject the concurring opinion's suggestion that the supreme court in

Mordenti implicitly affirmed the trial court's ex parte ruling that the attorney-client

privilege did not apply. It was not necessary for the supreme court to rule on the

privilege issue for its determination of whether the State committed a Brady violation in

failing to disclose the statements. Furthermore, I do not believe that Trevena had a duty

to seek review of the trial court's ex parte order in order to preserve his ability to claim

the privilege in a separate judicial proceeding. Without appellate review of the trial

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court's order, the trial court's order cannot become the law of the case. See McBride,

848 So. 2d at 290.

Nor do I believe that publication of Royston's privileged statements by the

Florida Supreme Court constitutes a sort of abrogation of the privilege. It is true that the

cat is out of the bag, so to speak, and the content of Royston's confidential statements

to attorney Trevena has been made public. However, the fact that the information is

public does not mean that the information is discoverable for trial. Because the privilege

has not been waived by anyone authorized to do so, the fact that Trevena's proffer was

subsequently published should not abrogate the privilege.

Finally, I reject the majority's suggestion that Royston may have waived

the attorney-client privilege by communicating to his attorney via courtroom "outburst."

The majority notes that Royston "blurted out" the communication in a crowded

courtroom where he could have been overheard. However, this issue was not raised by

Mordenti on appeal, and we are precluded from addressing it for that reason. See

Johnson v. State, 660 So. 2d 637, 645 (Fla. 1995); Grimsley v. State, 939 So. 2d 123,

125 (Fla. 2d DCA 2006). Furthermore, there is no evidence that the statement was

heard by anyone other than attorney Trevena.

My determination that Mordenti has not established any error in excluding

the statements at issue as privileged renders moot a determination of whether the

statements constituted inadmissible hearsay. However, I do not share the majority's

concern with the application of the hearsay rule "to defeat the ends of justice" in this

case. In fact, the admission of a codefendant's self-serving hearsay statements to his

attorney, which were made to assist a defense that was seeking to avoid the death

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penalty and which were not subject to cross-examination, gives me greater concern for

the ends of justice.

Accordingly, I conclude that Mordenti has not established any reversible

error from the trial court's determination that Trevena's testimony was protected by the

attorney-client privilege. Therefore, I would affirm Mordenti's conviction.